Seniority Shipping Corporation SA v City Seed Crushing Industries Ltd ( m.v Joker)

An English court may restrain foreign proceedings brought in breach of an arbitration agreement where the agreement is governed by English law and the English court is the appropriate forum. The court should grant relief unless the claimant’s conduct, the progress of the foreign proceedings, or another good reason makes restraint inappropriate.

Participation in foreign proceedings to obtain release of property from arrest does not necessarily amount to submission to the foreign jurisdiction. The court must assess such conduct in context, including any continuing protest and the prompt pursuit of anti-suit relief.

The claimant, owner of the Joker, sought a final anti-suit injunction restraining the defendant from pursuing cargo-damage proceedings in Bangladesh. The cargo had been carried under bills of lading incorporating the terms of a voyage charter, including an English law and London arbitration clause.

The defendant did not participate in the English proceedings. The claimant had nevertheless taken limited steps in Bangladesh to secure release of the vessel and obtain extensions of time. The issues were whether the arbitration obligation had been incorporated, whether the defendant could rely on Article 10(2) of the Rome I Regulation, and whether the claimant’s participation or the progress of the Bangladesh proceedings made final relief inappropriate.

1. Arbitration obligation. The Congenbill 1994 incorporation clause incorporated the voyage charter’s English law and arbitration provisions into the bills of lading. Under Article 10(1) of the Rome I Regulation, English law governed the question of incorporation. It was reasonable under Article 10(2) to determine the effectiveness of incorporation by reference to the law specified in the charter. The defendant was therefore contractually bound to refer the cargo claim to London arbitration.
2. Forum. The English court’s appropriateness as the forum had been assessed when service out was authorised. The defendant, having made no application under Civil Procedure Rules 1998 Part 11, had not shown a proper basis for revisiting that assessment.
3. Anti-suit relief. Applying the orthodox approach stated in The Angelic Grace [1995] 1 Lloyd’s Rep 87, the court should restrain foreign proceedings brought in breach of an arbitration agreement unless the foreign proceedings had advanced, the claimant had participated to an extent making intervention inappropriate, or some other good reason existed.
4. Participation. Steps taken to secure release of the vessel from arrest, accompanied by repeated protest that the dispute belonged in arbitration and by prompt English proceedings, did not constitute voluntary submission to the Bangladesh court. The claimant’s appearances to obtain extensions of time might have amounted to submission if viewed in isolation, but did not do so in their full context.
5. The defendant had offered no explanation or justification for pursuing the Cargo Claim and had not shown any good reason against restraint. The claimant’s claim succeeded in full. A final injunction was granted on the claimant’s and the Standard Club’s undertakings, and costs were summarily assessed at £82,370.28.

Not an appeal. The judgment records interim injunctions granted by Butcher J on 14 June 2019 and continued by Andrew Baker J on 12 July 2019. The final injunction was granted at trial.